H.M. Leisure VS State Of West Bengal

The petitioner has filed a writ petition under Article 226 of the Constitution of India, contesting the recovery of Rs. 1,41,10,717/- subsequent to the issuance of orders on September 30, 2019, and October 18, 2019, by the First Appellate Authority. The petitioner, represented by learned counsel, asserts the right to appeal before the learned Tribunal under Section 112 of the West Bengal Goods and Services Tax Act, 2017 (referred to as the said Act). According to the petitioner’s counsel, the appeal must be lodged within three months of the First Appellate Authority’s decision, and it can be considered by the Tribunal upon payment of 20% of the remaining disputed tax amount.

Furthermore, the petitioner’s counsel reiterates that due to the absence of an Appellate Tribunal, this writ petition has been initiated.

The submitted summary, dated November 29, 2019, emphasizes a fundamental legal principle: when an appeal provision exists within a statute, authorities are generally prohibited from recovering payable amounts unless exceptional circumstances warrant otherwise. This principle is particularly relevant in cases involving classification disputes, as is the situation here. The contention arises from the actions of authorities who swiftly pursued the collection of the entire sum owed within a three-month period, despite the availability of an appeal process outlined in Section 112 of the relevant Act. The summary suggests that such actions were precipitous and potentially premature, given the existence of a legal avenue for redress through the Appellate Court.

Mr. Abhratosh Majumdar, a learned Additional Advocate General representing the State, made a comprehensive argument regarding a case where a provisional attachment was in place. He asserted that despite the existence of this attachment, the authorities proceeded with recovery proceedings after a waiting period of over a month, ultimately recovering the entire amount in question.

However, Mr. Majumdar contended that according to Section 112(8)(b) of the relevant Act, the authorities are only entitled to recover up to 20% of the amount. Any recovery beyond this limit would constitute excessive action, especially considering that the period allowed for filing an appeal under Section 112 of the Act is three months.

In light of these legal provisions, Mr. Majumdar urged that the authorities should be instructed to refund the excess amount that was recovered beyond the permissible limit. This refund should be directed to the respective bank account. His argument thus highlights the importance of adhering to statutory limits and ensuring fair proceedings within the bounds of the law.

Within a span of 15 days from the current date, the petitioner will have the opportunity to resume operations of their account as the court has ordered the cancellation of the attachment placed on their bank account. The application in question, identified as C.A.N. 11697 of 2019, has been resolved accordingly. Notably, since there was no submission of an affidavit-in-opposition, the allegations outlined in the application are not considered as admitted by the respondents.

During the proceedings, the Learned Counsel representing the respondents has requested additional time to prepare and file an affidavit-in-opposition in response to the main writ petition. Consequently, the court has granted this request, allowing the respondents a period of four weeks to submit the affidavit-in-opposition. Furthermore, it has been stipulated that any affidavit-in-reply to the opposition must be filed within two weeks following the submission of the respondents’ affidavit. 

Download PDF:

For Reference Visit:

Read Another Case Law:

GST Case Law: